Public Defender Spotlight

December 9, 2024 – Our Public Defender Spotlights shout out and celebrate the achievements of individual members of the PDAP community, whether past or recent. If you’d like to nominate a fellow Public Defender (attorney, social service advocate, investigator, mitigator, or support staff member) for a feature, reach out to Anna@PAPublicDefenders.com.

On September 26, 2024, the Pennsylvania Supreme Court decided Commonwealth v. Berry, which states that judges cannot consider a defendant’s prior arrest record at sentencing if that record has not resulted in conviction or adjudication. PDAP had the chance to speak with Defender Association of Philadelphia Attorney Leonard Sosnov, who argued this landmark holding along with fellow Attorney Cheryl Brooks. During his interview, Len speaks about the impact of the Berry case on future sentencing procedures and shares key advice for Public Defenders who may need to assert this newly established legal right in front of a skeptical court. 

Defendant James Berry’s sentence relied heavily on the evidence that he had been arrested before, despite having no prior convictions or juvenile adjudications. Berry and his lawyer filed an appeal, after which Cheryl Brooks and Len Sosnov were assigned to the case they would go on to win.

When asked about the reasoning behind this holding, Len explains how “because arrests mean nothing, they do not implicate in any way that someone is guilty of something. It happens to the innocent as well as the guilty, [therefore,] it cannot be used as a factor at sentencing against the defendant.”

The outcome of Commonwealth v. Berry also relates to other common evidence materials such as pretrial screenings. The Ohio Risk Assessment System (ORAS) is viewed by many states as a credible tool to determine a defendant’s risk of recidivism based on factors such as drug use, residential stability, and especially criminal history. Although the ORAS and similar screenings can still be brought up at hearings, any notice of prior arrest they contain should no longer be considered an adverse factor at sentencing.

Despite this, judges can still find a loophole by failing to mention the arrest record as an influence on the sentence. Len mentions how they “could prove, by preponderance of the evidence, the underlying conduct. I think what’s going to happen with some prosecutors’ offices and individual District Attorneys [is that] they know they can’t rely on just the fact that the person was arrested. So they’re going to try to introduce various things and say ‘judge, now, you can consider that it’s not just their arrest.’”

So how can Public Defenders assert this claim and challenge judges who rely on arrest records and risk assessments? According to Len, getting the case in front of a sentencing or probation judge is a crucial first step. Attorneys can make a request to stop using arrest records, then cite Commonwealth v. Berry in any legal action that follows.

We have yet to know exactly how this holding may affect other aspects of the criminal legal process, such as supervision of probation. But thanks to the unyielding efforts of Len, Cheryl, and other Public Defenders determined to advocate for this claim, courts will have to rely less on prior arrests and, in turn, avoid sentencing defendants to conditions they may not deserve.

You can check out our full interview with Leonard Sosnov here or by clicking on the photo above.